Letter to EPA~WRITE ONE TOO!

The EPA is looking for your input that needs to arrive at their office by May 16th regarding this memorandum http://www.epa.gov/npdes/pubs/establishingtmdlwla_revision.pdf  It is very important that we generate as many comment letters as we can in favor of the parts of the 2010 memo that improve upon the 2002 guidance. The 2002 guidance touted best management practice (BMP)-based approaches as the generally-accepted way to implement TMDLs and to comply with water quality standards except in “rare instances.” This EPA policy had been crafted to reflect the lack of sufficient data and experience available at that time in developing specific TMDL stormwater allocations and appropriate numeric water quality based effluent limits.

EPA has expressed their strong interest in getting lots of comments in on this memo. They are planning to use the comments to decide whether to amend it, withdraw it or leave it unchanged.  Save Maumee believes that it would be best IF this memo is left in tact! EPA is going to hear loudly from the regulators and the regulated community; the associations (state agencies and wastewater and stormwater permittees) are organizing their members against this memo.

·        EPA will likely change this memo in some way (if they don’t simply abandon it), and we need to let them know what pieces we think are worth keeping!

·       The EPA is calling for our support on this memo is a test to see how much support they will get from us on the federal stormwater rule in the works. EPA’s interpretation of this turnout could influence how far they are willing to go against mounting opposition to the stormwater rule.  PLEASE it is to keep us safe!

TELL THEM PLEASE!

 

RE: Establishing TMDL, WLAs & NPDES permits

Dear EPA Decision Makers,

The Maumee Watershed is the largest and longest contributing stream to the Great Lakes in the USA.  It is important to note there are no TMDL’s and over 50 NPDES in the Upper Maumee in Fort Wayne/Allen County.  After reading an independent study in 2002, there are discrepancies in the total number of NPDES and pipe counts for the Upper Maumee are unknown.  The entire Maumee and St. Mary’s Rivers are on the 303 (d) list for impaired water.  Please continue your diligence in numeric limits are inherently measurable and accountable, EPA has appropriately recommended and enforce them in our area.

Army Corps of Engineers have stated, “We do not enforce BMP’s we only suggest and check on the process.  It is the EPA’s job to enforce the permits and law.” (April 2011 Allen County Public Library, Fort Wayne, IN)  IDEM has stated during a complaint in 2010, “We are understaffed and cannot accommodate your request to check on BMP’s for a construction build for up to 70 days from your complaint.” (It took them 7 weeks before checking on a complaint on Maplecrest Extension road.) The EPA policy had been crafted to reflect the lack of sufficient data and experience available at that time in developing specific TMDL stormwater allocations and appropriate numeric water quality based effluent limits. Keep the memorandum as it is!

I have seen the standards and am appalled at the regulators lack of enforcement by government agencies.   Please stand strong in safety of water and that begins with BMP’s, stormwater, waste water, NPDES and TMDL’s for the health and well being of over 25 million people in my watershed that flows to the Great Lakes.

 Key points to review:

 ·        November 2010 memo is an important step forward – encouraging more specifics in stormwater permits and TMDL stormwater wasteload allocations.

·        November 2010 memo is based on the same statutory and regulatory provisions as the 2002 memo that has been in effect as guidance. The 2010 memo is not a different interpretation of the law and regulations, instead it reflects the evolution of the stormwater programs, more available data, significant experience with stormwater controls, numerous examples of numeric water quality based effluent limits in stormwater permits, and continued demonstration of significant stormwater-caused impairments throughout the country in spite of numerous rounds of permitting.

·        It is appropriate and legally defensible for EPA to recommend numeric water quality based effluent limits in stormwater NPDES permits under circumstances including the following:

o   When the stormwater discharge is going to cause or worsen problems

The Clean Water Act requires that stormwater permits contain water quality based effluent limitations when the permitting authority has determined that the discharge has the “reasonable potential to cause or contribute” to an excursion of the water quality standards, including when a receiving water body is already identified on the threatened and impaired waters list. (CWA section 402(p)(3)(A), 40 CFR 122.44(d)(1)(iii)) Because numeric limits are inherently measurable and accountable, EPA has appropriately recommended that they be used.

o   When the stormwater discharge is a known source of problems

The Clean Water Act also requires that if a TMDL has been developed that includes wasteload allocations for stormwater discharges, stormwater permits regulating those sources must contain water quality based effluent limits and conditions consistent with the requirements and assumptions of the allocations in the TMDL. (40CFR122.44(d)(1)(vii)(B))

·        Requirements for MS4s

The memo correctly demonstrates that MS4 permits must include water quality based effluent limits when the permitting authority has determined that the discharges have a reasonable potential to cause or contribute to excursions of water quality standards OR when the MS4 discharges are included in a TMDL wasteload allocation. The Clean Water Act language requiring the control of discharge of pollutants from MS4s to the maximum extent practicable (MEP), also says “and such other provisions as the Administrator or the State determines appropriate for the control of such pollutants.” (CWA section 402(p)(3)(B)(iii)) EPA views the latter clause as allowing for development of effluent limits “as necessary for compliance with water quality standards.”  This interpretation is supported by the language in the 9th Circuit Court of Appeals decision Defenders of Wildlife v. Browner, 191 F.3d 1159, 1166 (9th Cir.1999). State courts have further found that permit requirements that prohibit causing or contributing to water quality standards can be met by municipal efforts consistent with the MEP standard. 

·        Burden of proof for infeasibility

The memo recommends that numeric limits should be used “where feasible,” yet the regulatory language allowing for the use of BMPs to “control or abate the discharge of pollutants” lists as one of four reasons: when “numeric effluent limitations are infeasible.” (40CFR122.4(k)) The regulatory language clearly places the burden of proof on demonstration of infeasibility of numeric limits, and the 2010 memo should be changed to reflect that reality.

·        Disaggregation of stormwater sources in TMDLs

The memo notes the great challenges with establishing clear, effective and enforceable stormwater permit limits when TMDL stormwater wasteload allocations are aggregated. Due to those challenges, EPA now recommends that stormwater wasteload allocations be disaggregated to the extent feasible AND as narrowly as available information allows. This approach should certainly lead to allocations for individual permittees and wherever possible to individual outfalls. That transition should be supported.

·        Using surrogates for pollutant parameters

The memo highlights the recommendation from the National Research Council (NRC) in their 2008 report Urban Stormwater Management in the United States that suggests that a better way to “regulate stormwater contributions to waterbody impairment would be to use flow OR a surrogate, like impervious cover, as a measure of stormwater loading.” It is worthwhile to support the reference to the NRC’s highlight of the need to reduce stormwater flow not only as a cause of pollutant loading, but also to prevent harm to aquatic life caused by stream channel scouring, erosion and sedimentation.

It is also important to support EPA’s emphasis that use of any surrogates would require demonstration of the linkage between the surrogate parameter and the documented impairment (e.g., biological degradation) as well as adequate monitoring to ensure compliance. When use of any surrogate alone is not adequate to achieve water quality standards, additional pollution source control measures must also be included. Use of surrogates should not be considered as functional compliance with water quality-based requirements, although such approaches may help a permittee protect uses and meet criteria.

·        Numeric stormwater limits:

o   The Vermont Construction General Permit includes a turbidity limit – 25 NTU benchmark at the point of discharge.  Any discharge over that requires implementation of additional BMPs, and violation of the benchmark must also be reported within 24 hours to the state water quality agency.  However, in Indiana the standards are not being enforced and need to be written for TMDL’s.

Email to weiss.kevin@epa.gov.

OR

Kevin Weiss
Water Permits Division
U.S. Environmental Protection Agency
Room 7334 EPA East
1200 Pennsylvania Avenue, NW
Washington DC 20460
If additional information is necessary, please call Kevin Weiss at (202) 564-0742.

PLEASE write your own letter even if you understand little of what is being presented.  Simply tell the EPA that you are depending on them to keep you safe with the most stringent regulations!

 

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